Moore v. Dunn & Fell

Citations

• 147 Pa. 359
• 23 A. 596
• 1892 Pa. LEXIS 855

Syllabus

<p>Practice (C. P.) — Validity of judgment attached by subsequent creditors,</p> <p>A rule to opeu judgment at the instance of a subsequent judgment creditor is contrary to established practice and the rights of the plaintiff, and will be discharged as a matter of course.</p> <p>The proper practice is to apply for a rule on the plaintiff and sheriff to show cause why the money produced by the sheriff’s sale on the prior execution should not be paid into court, and dispute the validity of the judgment before an auditor, or apply for an issue to be tried in court.</p> <p>Distribution of proceeds of sheriff’s sale — Issue—Disputed facts.</p> <p>Under the act of June 16, 1836, providing for an issue if any fact connected with the distribution of the proceeds of a sheriff’s sale is in dispute, an issue is not a matter of right on filing an affidavit that there are material facts in dispute, without stating what they are. The applicant must set out the specific facts in dispute, on which he bases his claim: Schwartz & Graff’s Ap., 21 W. N. C. 246, distinguished.</p> <p>The proper practice to obtain an issue is for the complaining creditor to file an affidavit that the judgment attacked is fraudulent and collusive, and without consideration, and that it is intended to hinder, delay and defraud creditors. On this the plaintiff in the attacked judgment may file an affidavit denying the averments; but if he will not, the court should grant the issue as a matter of course. If the plaintiff files a denial, depositions should be taken and on them the court will determine whether the issue shall be granted, subject to an appeal if the issue be refused, as provided by the act of 1846. If a denial is filed and the applicant will not take depositions, the issue should be refused: Per Arnold, J.</p> <p>In this case the plaintiff resisted the application for an issue and sustained his judgment by depositions which the court held sufficient, and refused the issue.</p>